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ED Can’t Arrest Once Court Has Taken Notice of Complaint: SC

In a significant ruling the Supreme Court on Thursday ruled that Enforcement Directorate cannot arrest an accused booked under the prevention of Money Laundering Act (PMLA) once the court had taken cognizance of its prosecution complaint (equivalent of a charge sheet)

The Supreme Court made it clear that in case Where an accused was not arrested till the time ED filed its prosecution complaint they could not be arrested afterwards without court’s permission

The special court must first issue a summons (not warrants) and, if the accused duly answers that sum- mons, the person could not be seen as being ‘in custody’, the court held.

A bench comprising justices AS Oka and Ujjal Bhuyan held: “After cognizance is taken of the offence punishable under Section 4 of the PMLA based on a complaint under Section 44, ED and its officers are powerless to exercise powers under Section 19 to arrest a person shown as accused in the complaint. If ED wants custody of the accused who appears after service ‘Special courts can grant of summons for conducting further in-exemption vestigation in the form appearance where same offence, ED accused will have to seek custody of the accused by applying to the special court.”

The order adds that after hearing the accused, the special court “must pass an order on the application after recording brief reasons. While hearing such application, the court may permit custody only if it is satisfied that custodial Interrogation at that stage is required even though accused was never arrested under Section 19 (of PMLA).”

The apex Court held that special courts can even grant exemption from appearance in a case where the accused shows sufficient cause.

The ruling adds: “If the accused can issue a warrant in terms of Section 70 CrPC. The special court must first issue a bailable warrant. If it is not possible to effect service of ball able warrant, then the recourse can be taken to non-bailable warrants.”

The bench further ruled that “a bond furnished according to Section 88 of Criminal Procedure Code is only an undertaking by an accused who is not in custody to appear before the court on the date fixed.” ” ed.” Therefore, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail, it added.

The judgment was passed in a ca- se questioning whether an accused in a money laundering case must meet the stringent twin-test for bail when the special court has taken cognizance of the offense

The petitioner, one Tarsem Lal, had challenged a December 2023 order of the Punjab and Haryana High Court which denied him anticipatory ball in a money laundering case registered against him.

SC also ruled that an accused appearing before a special court pursuant to summons need not apply for anticipatory bail. The apex court had earlier reserved its judgment on April 30.

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